Plaintiffs Chicago Steel Rule & Die Fabricators Co. A strict tort liability action. For defective products in Suvada v. White Motor Co.

1. Strict Liability Product Defect

Case Name: Johnson v. American Cyanamid Co Date: 1986 Jurisdiction: Supreme Court of Kansas Rule: The ‘‘ learned intermediary’’ concept is that the manufacturer’s duty is to adequately (this is the heart of this case) warn the physician of a known risk. Brief Analysis: The learned intermediaryrequirement is imposed on failure to warn cases regarding medication: it is the manufacturer’s job to inform the physician of all known risks. The adequacy of the warning is frequently at issue, however, the warning in this case was more than sufficient to inform the physician of the risks involved in treatment. Topic Area: Product Liability – Warning Defect Facts: On September 26, 1975, plaintiff took his infant daughter Laurie to the child’s pediatrician, where Orimune, an oral polio vaccine manufactured Defendantd, was administered to her. In December of 1975 plaintiff became ill and was admitted to a medical center where he was diagnosed with bulbar paralytic poliomyelitis.

Plaintiff is totally disabled as a result of the disease. Plaintiff contends that Defendant failed to adequately warn the physician of the risk of polio associated with the vaccine. P Argument: Plaintiff contends the first paragraph of the warning waters down the total warning. D Argument: Rule: The ‘‘ learned intermediary’’ concept is that the manufacturer’s duty is to adequately (this is the heart of this case) warn the physician of a known risk. Analysis: In determining warning issues, the test is reasonableness. To impose liability on a manufacturer, the plaintiff must show negligence on the part of the manufacturer. ‘‘ The estimated risk of vaccine-induced paralytic disease occurring in vaccinees or those in close contact with vaccinees is extremely low.

A total of approximately 30 of such cases were reported for the 8 year period covering 1963 to 1970, during which time about 147,000,000 doses of the vaccine were distributed nationally. Even though this risk is low, it should always be a source of consideration.’’ (Emphasis supplied.) The warning obviously warns that in rare instances a person in close contact with a vaccinee may develop polio. This is exactly what happened to the plaintiff herein. This, then, is not a failure to warn question, but rather a question of the adequacy of the warning. If a lay person takes a drug or receives a vaccine and two days later is suffering from an abscessed tooth, an attack of appendicitis, or whatever, he or she tends to link the two occurrences as cause and effect regardless of any medical connection. The first paragraph of the warning leaves in the possibility some minor side effects reported by patients might be medically possible. The balance of the warning clearly states the scientific fact that some persons in close contact with vaccinees may develop a paralytic disease from such contact.

It is unnecessary to describe to a physician what paralytic disease is and the seriousness of it. Concurrence: N/A Dissent: N/A Conclusion: The learned intermediaryrequirement is imposed on failure to warn cases regarding medication: it is the manufacturer’s job to inform the physician of all known risks. The adequacy of the warning is frequently at issue, however, the warning in this case was more than sufficient to inform the physician of the risks involved in treatment. Case Name: Grundberg v. Date: 1991 Jurisdiction: Supreme Court of Utah Rule: A drug approved by the United States Food and Drug Administration (‘‘FDA’’), properly prepared, compounded, packaged, and distributed, cannot as a matter of law be ‘‘defective’’ in the absence of proof of inaccurate, incomplete, misleading, or fraudulent information furnished by the manufacturer in connection with FDA approval. All FDA-approved prescription medications are ‘‘unavoidably unsafe,’’ (Comment k to Restatement (Second) of Torts 402A is adopted) Brief Analysis: Because the FDA is in the perfect position to regulate and approve drugs based on expert analysis, drugs approved by the FDA cannot be attacked based on design defects.

This does not preclude manufacture defects or warning defects claims from being brought. The Court explicitly adopts comment k to Restatement (Second) of torts 402A Topic Area: Product Liability – Design Defect Facts: Mildred Lucille Coats died at age 83 from gunshot wounds inflicted by her daughter, Ilo Grundberg (Plaintiff), on June 19, 1988. Case Name: Riley v. Becton Dickson Vascular Access Date: 1995 Jurisdiction: U.S. District Court, E.D. Case Name: Branham v. Ford Motor Co Date: 2010 Jurisdiction: Supreme Court of South Carolina Rule: NEW RULE/MAJORITY: ( Risk-Utility Test): Numerous factors must be considered when determining whether a product is unreasonably dangerous, including: (1) the usefulness and desirability of the product, (2) the cost involved for added safety, (3) the likelihood and potential seriousness of injury, and (4) the obviousness of danger.

Understanding Strict Products Liability. ORIGINS AND PURPOSE OF A PRODUCTS LIABILITY CLAIM. In McPherson v. Buick Motor Co.,2 rationalized that when a. The Advent of Strict Liability in Tort. Successor Liability Law in Products Liability Actions. Johnson Machine & Press Co.

A product is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe. Restatement (Third) OF TORS:PRODUCT LIABILITY 2(b) Brief Analysis: The case is remanded for a finding of proportion of guilt between Defendant and Hale. Plaintiff has made a case for alternative design, and the jury agreed. In applying the test: (1) The initial suspension system was only marginally useful as an advertising gimmick, (2) There would be no cost for added safety, (3) Defendant was on notice of the increased risk of a vehicle rolling with the current suspension system, and (4) It is quite obvious that harm may ensue if a vehicle rolls over. Topic Area: Product Liability – Design Defect Facts: Cheryl Hale (“Hale”) purchased a used 1987 Ford Bronco II 4×2 in June of 1999.

The vehicle was manufactured in 1986 and had 137,500 miles on it. On June 17, 2001, Hale was driving with her child in the passenger seat and Plaintiff Jesse Branham, III (“Plaintiff”) in the backseat.

No one was wearing a seatbelt. Hale turned to the backseat to ask the children to quiet down. When doing this, she veered toward the shoulder of the road and the right wheel left the roadway.

She responded by overcorrecting to the left. The overcorrection led to the vehicle rolling over, and Plaintiff was thrown from the vehicle and injured. The engineers at Ford believed the MacPherson suspension the better choice and ‘‘opposed the Twin I–Beam suspension because it was directionally wrong from the standpoint of steering, handling and rollover propensity and other characteristics.’’ Because the Twin I–Beam suspension was physically larger than the MacPherson suspension, using it required the entire vehicle to be lifted higher. This had a cascading effect on the composite makeup of the vehicle, which detrimentally moved the center of gravity higher off the ground. To make room for the Twin I– Beam suspension, the engine had to be raised ‘‘two to three’’ inches. With the engine raised a few inches, the transmission had to be raised, which caused the hood to be raised, which then caused the seating to be raised. The net effect of this was a higher center of gravity, ‘‘which added a rollover propensity.’’ The reason the Twin I–Beam was selected in the face of engineering concerns was that it served a ‘‘major marketing advantage,’’ as Ford had promoted this form of suspension on its full size trucks since the mid– 1960s.

In the minds of the marketing executives, the Twin I–Beam was part and parcel of a tough truck, and it made business sense to carry thatsuspension into the smaller trucks. P Argument: Plaintiff argues that he may prove a design defect by resort to the consumer expectations test or the risk-utility test. Plaintiff also argues that regardless of which test is required, he has met both, including evidence of a feasible alternative design D Argument: Branham failed to present evidence of a feasible alternative design. Implicit in Ford’s argument is the contention that a product may only be shown to be defective and unreasonably dangerous by way of a risk-utility test, for by its very nature, the risk-utility test requires a showing of a reasonable alternative design. Rule: For any product defect claim, there are 3 things which must be shown by Plaintiff: (1) that he was injured by the product; (2) that the product, at the time of the accident, was in essentially the same condition as when it left the hands of the defendant; and (3) that the injury occurred because the product was in a defective condition unreasonably dangerous to the user.’. There is no separate ‘‘failure to test claim’’ apart from the duty to design and manufacture a product that is not defective and unreasonably dangerous.

Strict Liability Product Defect

OLD RULE: ( Consumer Expectation Test): The test of whether a product is or is not defective is whether the product is unreasonably dangerous to the consumer or user given the conditions and circumstances that foreseeably attend use of the product NEW RULE/MAJORITY: ( Risk-Utility Test): Numerous factors must be considered when determining whether a product is unreasonably dangerous, including: (1) the usefulness and desirability of the product, (2) the cost involved for added safety, (3) the likelihood and potential seriousness of injury, and (4) the obviousness of danger. A product is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe. Restatement (Third) OF TORS:PRODUCT LIABILITY 2(b) Analysis: Plaintiff challenged the design of the Ford Bronco II by pointing to the MacPherson suspension as a reasonable alternative design.

A former Ford vice president, Thomas Feaheny, testified that the MacPherson suspension system would have significantly increased the handling and stability of the Bronco II, making it less prone to rollovers. Branham’s expert, Dr. Richardson, also noted that the Mac- Pherson suspension system would have enhanced vehicle stability by lowering the vehicle center of gravity. There was further evidence that the desired sport utility features of the Bronco II would not have been compromised by using the MacPherson suspension. Moreover, there is evidence that use of the MacPherson suspension would not have increased costs. Concurrence: N/A Dissent: N/A Conclusion: The case is remanded for a finding of proportion of guilt between Defendant and Hale.

Plaintiff has made a case for alternative design, and the jury agreed. In applying the test: (1) The initial suspension system was only marginally useful as an advertising gimmick, (2) There would be no cost for added safety, (3) Defendant was on notice of the increased risk of a vehicle rolling with the current suspension system, and (4) It is quite obvious that harm may ensue if a vehicle rolls over. Posted in,.

Case Name: Smoot v. Mazda Motors of America Date: 2006 Jurisdiction: U.S. Court of Appeals 7 th Circuit Rule: While typically, Res ipsa requires that the Defendant have exclusive control of the object which caused the harm, the doctrine can be applied in a products case as long as the product defect that is claimed to have caused the accident existed before the defendant shipped the product rather than being created by tampering or use after he parted with it. Brief Analysis: The doctrine of Res ipsa may be invoked in product liability cases where the defect existed before Defendant shipping it out.

In this case, there is not enough evidence to support the doctrine. Topic Area: Product Liability – Manufacture Defect Facts: Mrs. Smoot was driving her one-year-old Mazda at 35 to 40 m.p.h. When she struck either a chunk of asphalt that had been dislodged from the pavement (her current version) or, more likely, a large pothole (the defendants’ version—but also what Mrs.

Smoot told the police officer who investigated the accident). Deployment of the airbags was triggered by the collision, causing the injuries of which she complains. The day before the accident she had received a notice from Mazda that there was ‘‘an increased risk of airbag deployment in a low speed crash or minor impact to the undercarriage’’ in the model that Mrs. Smoot was driving, and that the owner should contact a Mazda dealer to have the airbag control unit reprogrammed. Her husband had made an appointment with the dealer for a few days later—too late.

P Argument: D Argument: Rule: While typically, Res ipsa requires that the Defendant have exclusive control of the object which caused the harm, the doctrine can be applied in a products case as long as the product defect that is claimed to have caused the accident existed before the defendant shipped the product rather than being created by tampering or use after he parted with it. Analysis: While the doctrine of Res Ipsa may be invoked in product liability cases, the facts of this case are not enough to support it’s use. While Plaintiff contends that Defendant’s negligent manufacture of the air bags is the cause of the air bag improperly deploying and injuring her, the Court notes that hitting a pot-hole and decelerating to 8 M.P.H. Would be enough to properly deploy an air-bag.

There is not enough evidence to allow for the doctrine of res ipsa to be invoked. Concurrence: N/A Dissent: N/A Conclusion: The doctrine of Res ipsa may be invoked in product liability cases where the defect existed before Defendant shipping it out. In this case, there is not enough evidence to support the doctrine.

Related articles. (ashleymenage.wordpress.com) Posted in,. Case Name: Foster v. Preston Mill Co Date: 1954 Jurisdiction: Supreme Court of Washington Rule: One who carries on an ultra hazardous activity is liable to another whose person, land or chattels the actor should recognize as likely to be harmed by the unpreventable miscarriage of the activity for harm resulting thereto from that which makes the activity ultra hazardous, although the utmost care is exercised to prevent the harm. Brief Analysis: The unpreventable harm of blasting operations is damaged property from flying debris, or vibrations on the ground.

The injury here is not causally related to the aspects of blasting that make it ultra hazardous (proximate cause?), thus strict liability is inappropriate here. Topic Area: Strict Liability – Abnormally Dangerous Activities Facts: Plaintiff, Foster owned a mink farm. Defendant was engaged in a blasting operation 2.25 miles away. Plaintiff provided notice that the blasting operations were causing the mother mink to kill their kittens. The blasting continued unabated.

P Argument: D Argument: Rule: One who carries on an ultra hazardous activity is liable to another whose person, land or chattels the actor should recognize as likely to be harmed by the unpreventable miscarriage of the activity for harm resulting thereto from that which makes the activity ultra hazardous, although the utmost care is exercised to prevent the harm. Analysis: The thing which makes blasting ultra hazardous is the risk that property or persons may be damaged or injured by coming into direct contact with flying debris, or by being directly affected by vibrations of the earth or concussions of the air. Moderate vibration and noise 2.25 miles away was no more than a usual incident of the ordinary life of the community. It is the exceedingly nervous disposition of mink, rather than the normal risks inherent in blasting, which must bear the responsibility for the loss here sustained.

The policy of law does not impose the rule of strict liability to protect against harms incident to the Defendant’s extraordinary and unusual use of the land. Concurrence: N/A Dissent: N/A Conclusion: The unpreventable harm of blasting operations is damaged property from flying debris, or vibrations on the ground.

The injury here is not causally related to the aspects of blasting that make it ultra hazardous (proximate cause?), thus strict liability is inappropriate here. NOTE: A negligence claim would likely fail for the same reason as well.

Posted in,. Case Name: Indiana Harbor Belt R.R. American Cyanamid Date: 1990 Jurisdiction: U.S. Court of Appeals 7 th Circuit Rule: Factors to consider for a finding of abnormally dangerous activities, thus exposing the actor to strict liability: (1) existence of a high degree of risk of some harm to the person, land or chattels of others, (2) likelihood that the harm that results from it will be great, (3). Inability to eliminate the risk by the exercise of reasonable care, (4) extent to which the activity is not a matter of common usage, (5) inappropriateness of the activity to the place where it is carried on, and (6) extent to which its value to the community is outweighed by its dangerous attributes Brief Analysis: A finding that this spill is abnormally dangerous activity would impose strict liability on the spill of 52 other substances. The risk can be eliminated by the use of reasonable care, and thus a negligence standard is more than appropriate in these situations.

Topic Area: Strict Liability – Abnormally Dangerous Activities Facts: Defendant was a major manufacturer of chemicals, including acrylonitrile. Acrylonitrile is flammable at temperatures above 30 degrees Fahrenheit, is highly toxic, and possibly carcinogenic.

Defendant leased railroad cars to transport acrylonitrile to purchasers. When one of these cars arrived at the Blue Island yard just south of Chicago, it was noticed that acrylonitrile was gushing out of a bottom outlet on the car.

Although only about of a quarter of the acrylonitrile escaped, the Illinois Department of Environmental Protection ordered the Plaintiff switching line to take decontamination measures costing $981,022.75. One count of the complaint asserted that the transportation of acrylonitrile in bulk through the Chicago metropolitan area is an abnormally dangerous activity. The trial court found that strict liability applied and granting summary judgment in favor of Plaintiff on that count. P Argument: D Argument: Rule: (1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land, or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm. (2) This strict liability is limited to the kind of harm, the possibility of Which makes the activity abnormally dangerous.